Patent Reform
Discussion of intellectual property run amok, insofar as it exists at all, tends to focus on copyrights. But as Zachary Roth argues persuasively in a new Washington Monthly article, it infects the realm of patents as well. Reforming the system is one of those things that doesn't have any particular ideological valence -- it's not as if making it really, really easy to register spurious new patents is a longstanding cornerstone of conservative thought -- but since the pharmaceutical industry seems to be the main beneficiary of the flaws in the current process and the GOP is about as under the drug companies' thumb as it's possible to imagine, I have a hard time seeing any action being taken under the current circumstances. Congressional Republicans are invited to prove me wrong.
It is crazy. I'm an engineer, and I can tell you that no sane person would try to try to start a company in a field that a large company like IBM or Applied Materials, etc, wants to be in.
After I left graduate school, I found patents awarded on techniques that, as a graduate student, I used and knew were common place, and had been for a long time.
If they desired, they could sue just about any small company they choose out of existance. You simply could not fight them not matter what the facts of the case might be. You'd run out of money before they even realized you were trying.
It is no secret that the patent system is totally broken. It is a cash machine for the government, complete with quotas, etc.
June 3, 2005 5:36 PM | Reply | Permalink
I guess an example of this is the Gillette/Schick fight where Gillette patented not just their specific design, but "the idea of multi-blade razors"
June 3, 2005 5:36 PM | Reply | Permalink
"but since the pharmaceutical industry seems to be the main beneficiary of the flaws in the current process and the GOP is about as under the drug companies' thumb as it's possible to imagine..."
I regret to inform you that I hold the US Patent on the use of the phrase "under ___ thumb" in weblog commentary.
Please immediately send me $.08 for each page view your posting receives.
June 3, 2005 5:44 PM | Reply | Permalink
It's tough to know how to best motivate innovation. Many recent observers have concluded that our current patent system is too strong. If that's true, it's a relatively new phenomenon. Not too long ago, the general consensus was that our patent system was too weak, and that it was hurting our competitiveness internationally. In the late '70s, Jimmy Carter set up a Domestic Policy Review committee to find the sources of our national malaise. One of its key recommendations was that we needed to strengthen our patent system. The Carter Justice Department ran with the idea, and in one of the few clean handoffs, the Reagan Justice Department finished the job.
That was 25 years ago. We need to fix the system again, perhaps in fundamental ways. The best bet would be to keep it where it is--with the ideological divide running orthogonal to partisan affiliation. While I don't deny the benefits that the pharmaceutical industry enjoys under both the patent system and several of Bush's domestic policies, I see this parallel as essentially coincidental.
June 3, 2005 5:50 PM | Reply | Permalink
Informationist: There was actually a surprising amount of Carter-Reagan continuity on a variety of issues related to the deregulation of industry, where a somewhat wacky coalition of Naderite consumer advocates and ideological libertarians relaxed a lot of New Deal-era rules that had become crusty with capture by incumbent industry players and so forth.
June 3, 2005 6:01 PM | Reply | Permalink
I am an inventor on about 10 US patents, and I am here to tell you the system is totally broken. The patent law requires that and invention is new and non-obvious to someone familiar with the area. Unfortunately, the patent office is overwhelmed with application and simply lacks expertise in most areas. When you submit an patent, you always get back an initial rejection letter, which lists a number of previous patents that the patent examiner thinks already describe parts of your application. When you get those patents and read them, you realize that the patent examiner has no idea what your patent application is about. The cited patents have nothing to do with your application. It appears the way the patent examiner found them was by looks for patents that used some of the same keywords. The result is that you can patent almost anything, even if it is obvious to almost everyone.
In the last few years the patent office has reviewed some of the most clear cases of wrongly issued patents, but the current system is still badly broken.
June 3, 2005 6:50 PM | Reply | Permalink
I disagree that this isn't an ideological issue; conservative parties the world over have come down on a very expansive definition of property, and that includes the (dubious) concept of intellectual property.
After all, it isn't hard anarcho-capitalists that are screaming "information wants to be free".
June 3, 2005 7:20 PM | Reply | Permalink
This is destroying the tech industry. I run a small silicon valley software company. I've discovered that about half of the basic techniques that I learned as an undergrad are patented (as "non-obvious").
Prior art doesn't get you out: it's not a license to violate the patent. Prior art is a defense you can use in court to get it invalidated. But, litigating a patent suit starts at $1M. No startup can take the risk...
June 3, 2005 11:05 PM | Reply | Permalink
This is a very interesting topic, but I think more specific terminology is required. Patents do not operate in one dimension, they operate in at least two: breadth and duration. "To illustrate, suppose that an investment of $100,000 in research yields a pioneering invention that has no commercial value. Subsequently, an investment of $50,000 in development yields an improvement that has commercial value of $1 million. If the law grants broad patents, a patent for the pioneering invention would also cover the application, but if the law grants narrow patents, separate patents would be required for the pioneering invention and the application." (Cooter and Ulen, Law and Economics, p. 131) (fair use!)
It's not obvious what the optimal breadth is, or the optimal duration for that matter. I gather that the issue at hand is one of competency rather than substantive policy, but it's worth thinking about what we want the patent office to do in the first place.
June 4, 2005 4:26 AM | Reply | Permalink
The pharmaceutical industry seems like a special case that could (but won't) be fixed relatively easily. Offer shorter protections for reformulations or drugs that jiggle irrelevant atoms but leave the biologically active functional groups alone; let the FDA set patent bounties (in the form of extended protection) for drugs treating unaddressed diseases. Right now the system rewards companies for reinventing the wheel, but it wouldn't be too hard to alter the incentives to favor solving new problems. It's just politically impossible.
I think the decisions to allow patents on software techniques, genes and business processes are a lot more worrying. We're getting close allowing portions of science to become privately owned, and as others have mentioned our patent examiners are not qualified to tread the line appropriately.
June 4, 2005 9:10 AM | Reply | Permalink
Patents exist because they supposedly serve the common good by promoting open knowledge, etc.
Alas, standard of acceptation are ridiculous. The USPTO essentially rubber-stamps everything submitted to it and works on the assumption that courts will sort out the mess. This approach just conveniently forget how cumbersome going to court is. I know that first hand, having filed and been granted a few defensive patents for my employer. I’m not proud of those patents to say the least.
Anyway, if those patents contribute so much to the common, it would only be fair that inventors get compensated for the expenses incurred filing the patent and having it carefully examined by the patent office, correct ?
Hence, my modest proposal.
Jack up the filing fees through the roof, enough to pay for a thorough examination by the PTO, looking at all sources of antecedence, not just existing patents. That is going to make a filing pretty expensive. Good. If you think your idea is worth patenting, you should be willing to risk $50,000 or $100,000 to get it done.
If the patent is rejected, the PTO gets to keep the fee and pay a really nice bonus to the examiner(s) who did the shredding. If not, the bonus part of the fee is paid back to the applicant by the PTO and the rest is reimbursed off the general federal budget. Cost for the applicant : $0.00.
Suddenly, the quality of patents will go up a lot and the quantity down a big lot.
PS: And if an applicant submits too many crappy filings, presume malignancy. Bar him/her from any new submission for 5 or 10 years (and disbar his attorney). For a corporation, invalidate its existing patents.
June 4, 2005 12:53 PM | Reply | Permalink
From the USPTO website:
"The USPTO funding is depending upon fees collected from its users."
In other words, it's in the Office's self interest to give out patents. That may or may not explain quite a bit.
June 4, 2005 6:59 PM | Reply | Permalink
There's an ongoing EU dispute about software patents. A lot of the people arguing for restrictions on the patentability of software cite experiences from the American system. There's an interesting selection of articles and quotes here , with a mix of comments arguing software is exceptional and mentioning failings of the USPTO.
A guy I know mentioned that he had been employed to work around IBM's patents on a data compression algorithm called arithmetic coding, which they first patented in 1977 and still own because they then proceeded to patent a bunch of aspects and features of it in a series of patents continuing until 1994. (he eventually found an algorithm not covered by the patents and only slightly worse than arithmetic coding, great leap forward for mankind, huh?)
There's a good summary of patents on compression algorithms here
The "Patent Bubble" sidebar was also interesting. A friend at a tech startup mentioned that they filed patents purely because investors believe that they are valuable.
June 5, 2005 2:53 AM | Reply | Permalink
Here is interesting FTC report on reforming the patent law system to more closely tie incentives to innovate to patents.
http://www.ftc.gov/os/2003/10/innovationrpt.pdf
Here is a new proposed law to reform the patent system somewhat related to the FTC report, but in any event proposing massive changes favorable to large companies.
http://patentlaw.typepad.com/patent/2005/04/patent_reform_h.html
The pharmasudical industry isn't the focus of any of this reform. Strong patents make sense to incentivise people to develop new medicines. Weaker patents make sense in areas, such as software, where the innovation is not driven by patents.
June 6, 2005 2:18 PM | Reply | Permalink